Gujarat High Court
Hareshbhai Babubhai Makwana vs State Of Gujarat on 17 January, 2019
Author: Sonia Gokani
Bench: Sonia Gokani
R/SCR.A/10332/2018 ORDER
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CRIMINAL APPLICATION NO. 10332 of 2018
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HARESHBHAI BABUBHAI MAKWANA
Versus
STATE OF GUJARAT
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Appearance:
MR NK MAJMUDAR(430) for the petitioners(s) No. 1,2
MR. MANAN MEHTA, APP (2) for the RESPONDENT(s) No. 1
UNSERVED WANT OF TIM(31) for the RESPONDENT(s) No. 2,3,4
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CORAM: HONOURABLE MS JUSTICE SONIA GOKANI
Date : 17/01/2019
ORAL ORDER
1. RULE. The formal service of notice of Rule is waived by the learned Additional Public Prosecutor on behalf of the respondents. The Rule is returnable forthwith on consent.
2. The petitioners are aggrieved by non registration of the first information report on the basis of written complaint / application dated 14.08.2018, addressed by the petitioners to the respondent No.3. It is the say of the petitioners that though cognizable offence is made out in the said complaint, the complaint is not being registered as the first information report. In support of submissions of the petitioners, the learned counsel appearing for Page 1 of 7 R/SCR.A/10332/2018 ORDER the petitioners has relied upon the decision of the Apex Court in the case of Lalita Kumari v. State of Uttar and others, reported in (2014) 2 SCC 1 and State of Telangana v. Habib Abdullah Jeelani and others, reported in (2017) 2 SCC 779.
3. Both the sides have been heard. Having considered the submissions made by both the sides and the material on record, as also having considered the judgment of the Apex Court in the case of Lalita Kumari (supra), this Court is of the opinion that the grievance put forth by the petitioners can be put an end to by directing the respondent authorities accordingly. It would be beneficial to regurgitate the relevant paragraph of the said decision, which reads as under :
"120. In view of the aforesaid discussion, we hold:
(i) Registration of FIR is mandatory under Section 154 of the Code, if the information discloses commission of a cognizable offence and no preliminary inquiry is permissible in such a situation.
(ii) If the information received does not disclose a cognizable offence but indicates the necessity for an inquiry, a preliminary inquiry may be conducted only to ascertain whether cognizable offence is disclosed or not.
(iii) If the inquiry discloses the commission of a cognizable offence, the Page 2 of 7 R/SCR.A/10332/2018 ORDER FIR must be registered. In cases where preliminary inquiry ends in closing the complaint, a copy of the entry of such closure must be supplied to the first informant forthwith and not later than one week. It must disclose reasons in brief for closing the complaint and not proceeding further.
(iv) The police officer cannot avoid his duty of registering offence if cognizable offence is disclosed. Action must be taken against erring officers who do not register the FIR if information received by him discloses a cognizable offence.
(v) The scope of preliminary inquiry is not to verify the veracity or otherwise of the information received but only to ascertain whether the information reveals any cognizable offence.
(vi) As to what type and in which cases preliminary inquiry is to be conducted will depend on the facts and circumstances of each case. The category of cases in which preliminary inquiry may be made are as under:
(a) Matrimonial disputes/family disputes
(b) Commercial offences
(c) Medical negligence cases
(d) Corruption cases
(e) Cases where there is abnormal
delay/laches in initiating criminal
prosecution, for example, over 3 months delay in reporting the matter without satisfactorily explaining the reasons for delay.Page 3 of 7
R/SCR.A/10332/2018 ORDER The aforesaid are only illustrations and not exhaustive of all conditions which may warrant preliminary inquiry.
(vii) While ensuring and protecting the rights of the accused and the complainant, a preliminary inquiry should be made time bound and in any case it should not exceed 7 days. The fact of such delay and the causes of it must be reflected in the General Diary entry.
(viii) Since the General Diary/Station Diary/Daily Diary is the record of all information received in a police station, we direct that all information relating to cognizable offences, whether resulting in registration of FIR or leading to an inquiry, must be mandatorily and meticulously reflected in the said Diary and the decision to conduct a preliminary inquiry must also be reflected, as mentioned above."
4.At this stage, it would also be apt to reproduce the relevant paragraph from the decision of the Apex Court in the case of Habib Jeelani (supra), which reads as under:
"The exceptions that were carved out pertain to medical negligence cases as has been stated in Jacob Mathew v. State of Punjab. The Court also referred to the authorities in P. Sirajuddin v. State of Madras and CBI v. Tapan Kumar Singh and finally held that what is necessary is only that the information given to the police must disclose the commission of a cognizable offence. In Page 4 of 7 R/SCR.A/10332/2018 ORDER such a situation, registration of an FIR is mandatory. However, if no cognizable offence is made out in the information given, then the FIR need not be registered immediately and perhaps the police can conduct a sort of preliminary verification or inquiry for the limited purpose of ascertaining as to whether a cognizable offence has been committed. But, if the information given clearly mentions the commission of a cognizable offence, there is no other option but to register an FIR forthwith. Other considerations are not relevant at the stage of registration of FIR, such as, whether the information is falsely given, whether the information is genuine, whether the information is credible, etc. At the stage of registration of FIR, what is to be seen is merely whether the information given ex facie discloses the commission of a cognizable offence."
5. Bearing in mind the aforementioned ratio laid down by the Apex Court as well as the contents of the said complaint made by the petitioners, the respondent No.3 shall look into the said written complaint of the petitioners and lodge the first information report if any cognizable offence is made out therein; if not, for the limited purpose of knowing as to whether cognizable offence is revealed, the preliminary inquiry shall be conducted. The petitioners shall be forwarded a copy of the first information report, if any registered, at the residence of the petitioners Page 5 of 7 R/SCR.A/10332/2018 ORDER forthwith. In the event, the respondent No.3 chooses not to lodge the first information report, the petitioners shall be communicated in writing the brief reasons accordingly. Such exercise shall be completed by the respondent No.3 at the earliest without further loss of time, but not later than eight weeks from the date of receipt of a copy of this order.
6. If the petitioners is aggrieved by the decision of the respondent No.3, the petitioners may approach the Senior Officer of the respondent No.3 under section 154(3) of the Code of Criminal Procedure, 1973. If the petitioners approaches such Senior Officer under section 154(3) of the Code of Criminal Procedure, he shall look into the complaint of the petitioners and decide the same bearing in mind the dictum of the Apex Court in the case of Lalita Kumari (supra) and in the case of Habib Abdullah Jeelani (supra) within a period of one week from the date of receipt of such complaint.
7. Such exercise shall be completed at the earliest without further loss of time, but not later than eight weeks from the date of receipt of a copy of this order. If the petitioners is not satisfied with the outcome, she can take a legal recourse thereafter to lodge private Page 6 of 7 R/SCR.A/10332/2018 ORDER complaint or any other mode which is permissible in accordance with law.
8. With the above direction, present petition stands disposed of accordingly.
Rule is made absolute to the extent aforesaid.
Direct Service is permitted.
(MS SONIA GOKANI, J) pradhyuman Page 7 of 7